HKSAR v. HUI MAN WAI

HCCC 373/2024

[2025] HKCFI 2657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 373 OF 2024

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REASONS FOR SENTENCE

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The Charge

1.  On 4 November 2024, the defendant pleaded guilty in the magistracy to two charges of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.  The 1^st charge involved 2,623.4 grammes of a crystalline solid containing 2,622.39 grammes of methamphetamine hydrochloride, 95.3 grammes of a solid containing 0.96 gramme of methamphetamine, and 201.5 grammes of a mixture containing 147.7 grammes of heroin hydrochloride.   The 2^nd charge involved 144 grammes of a crystalline solid containing 144 grammes of methamphetamine hydrochloride and 368 grammes of a mixture containing 310 grammes of heroin hydrochloride.  On the same day, the defendant admitted a Summary of Facts dated 7 October 2024 and he was committed to the Court of First Instance for sentencing.  Today, before this Court, the defendant confirmed his guilty pleas to the two trafficking charges and his admission of the Summary of Facts.

Facts Admitted

2.  The facts of the case can be summarized as follows.

3.  In the afternoon of 29 May 2023, the police mounted an anti-narcotics operation in respect of a storage room situated in an industrial building in San Po Kong.  The defendant and his wife were later seen leaving the room and the defendant locked the door with a key.  The couple were intercepted.  The police then entered the room with a search warrant and found a brown bag on the floor.  Inside the brown bag, the police found some dangerous drugs (the subject matter of the 1^st charge)  and drug-packing paraphernalia including an electronic scale and some empty re-sealable plastic bags.

4.  Upon arrest and under caution the defendant admitted that all the dangerous drugs in the brown bag were his and they had nothing to do with his wife.

5.  Later the same day, the defendant and his wife were escorted back to their flat at a residential building in Kwun Tong for a house search.  The police found inside the bedroom of the defendant and his wife more dangerous drugs in a black plastic bag (the subject matter of the 2^nd charge)  and another electronic scale. Upon further caution, the defendant admitted that those drugs were also his and they had nothing to do with his wife or his family.

6.  In his subsequent cautioned video interviews, the defendant further admitted that:-

(1)  He was a drug addict of heroin and “ICE”;

(2)  The storage room was rented by his wife on his behalf in about November 2022 as he wanted a place to store his work tools;

(3)  He lived with his wife, his mother and other family members at the flat in Kwun Tong;

(4)  The key to his bedroom was only kept by him;

(5)  In May 2023, he bumped into a male who asked him to keep the brown bag and the black plastic bag of dangerous drugs for him. The male said he would call him later to take them back and he would be given one ounce of heroin as a reward;

(6)  He first brought the two bags home. While he kept the black plastic bag at home, after a few days he took the brown bag to the room;

(7)  He had opened the two bags and he knew that they contained heroin and “ICE”. The male had not yet called him to take back the bags nor given him any heroin; and

(8)  The cash of HK$8,000 found on him was his salary as a construction worker.

7.  On 1 June 2023, a urine test was conducted on the defendant and it revealed different types of dangerous drug contents including amphetamine and cocaine in his urine.

8.  The estimated street value of all the drugs involved in this case was HK$2,250,057, with the heroin valued at HK$541,025 and the “ICE” at HK$1,709,032.

9.  In the Summary of Facts, the defendant also admitted that at the material time, he knowingly possessed all the dangerous drugs seized for the purpose of unlawful trafficking.

Background and Mitigation

10.  The defendant was born in Hong Kong and is now aged 52.  He received education up to Form 3.  He started working as a factory worker and later became a waiter.  His latest job was that of a glass curtain wall installer and he earned around $20,000 to $30,000 a month.  He is married with no children and before his arrest, he lived with his wife, mother, elder sister and younger brother in the flat in Kwun Tong.

11.  The defendant has a total of 12 previous convictions the last two of which were for theft offences both dated 10 November 2006.  The defendant became a drug addict in 1993.  Five of his previous convictions were for the offence of possession of dangerous drugs the last of which was dated 27 May 1997 and he has one previous conviction for possession of equipment fit for smoking dangerous drugs which was dated 24 October 1994.  The defendant has no previous conviction for trafficking in dangerous drugs.

12.  Mr. Chau, counsel for the defendant, told the Court that around end of May 2023, the defendant came across a friend (“the male”)  whom he had come to know when he was in a divan to take dangerous drugs.  They chatted for a while and the male asked the defendant if he would help him keep some dangerous drugs and he would call the defendant later to take them back.  The male promised the defendant an ounce of heroin as a reward.  The defendant reckoned that such an amount of heroin would cost about $30,000 and he succumbed to the inducement and agreed with the male. He was thus given the two bags of dangerous drugs for his keeping.  Given the small size of his flat and the number of family members living there, he decided to take these bags of dangerous drugs to his storage room one by one. He already took the brown bag to the storage room and would do the same later with the black plastic bag.  Mr. Chau contended that the defendant’s role was no more than that of a keeper of dangerous drugs.

13.  Mr. Chau told the Court that the defendant was very remorseful and upon arrest, he already confessed to the police.  He also co-operated with the police by taking part in the two video-recorded interviews, in which he gave full admissions.

14.  Through his counsel, the defendant has produced a letter to the Court in which he expressed his remorse and determination to rehabilitate himself to become a law-abiding person in the future.  He also pleaded for leniency from the Court.

15.  As the offences involved two or three types of dangerous drugs, Mr. Chau invited the Court to undertake a combined approach to sentencing in the present case.  He urged the Court to adopt the test with a result most favourable to the defendant.  He also submitted that the role of the defendant was no more than that of a storekeeper of dangerous drugs.  He further invited the Court to take the view that for the cocktail of drugs, an enhancement of no more than six months should be applied in the present case.  He accepted that given the seriousness of the trafficking offences, other than the guilty pleas, the defendant can raise no strong mitigating factor. 

16.  Lastly, Mr. Chau contended that the defendant was expecting to get an ounce (or 28.35 grammes)  of heroin as a reward and he anticipated that the male would give him the heroin from the bulk of dangerous drugs in his possession.  He thus asked for a small discount for that one ounce of heroin which would be used for his self-consumption.

Sentence

17.  In sentencing the defendant, I will follow the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

18.  The first step is to identify the relevant guideline band applicable to the quantities of the dangerous drugs in question.  In the present case, there are three types of drugs being involved, namely methamphetamine hydrochloride (“ICE”), methamphetamine and heroin hydrochloride. The quantity of methamphetamine is very small (i.e. only 0.96 gramme)  and I shall disregard it. 

19.  When more than one type of dangerous drugs are involved in a trafficking offence, the court will adopt a combined approach in sentencing.  As explained in HKSAR v Chan Yuk Leong, CACC 318/2013, there are three means of cross-checking whether a sentence is manifestly inadequate, namely, the absurdity test, the ratio test and the conversion test. 

20.  The absurdity test will result in an overall starting point of about 21 years and 11 months, where the ratio test will bring about the same starting point.  On the other hand, the conversion test will yield an overall starting point of about 21 years and 9 months.[1] In the circumstances of this case, as invited by Mr. Chau, I am prepared to use the lowest overall starting point which is calculated by reference to the conversion test for the present case, namely 21 years and 9 months’ imprisonment.  Both Mr. Chau and Mr. Kelvin Tang, counsel acting for the prosecution, confirmed that to be the correct overall starting point by adopting the conversion test.

21.  The conversion test is carried out in the following way.  In the present case, “ICE” is of the more substantial quantity than heroine.  For the two charges, the total quantity of “ICE” is 2,766.39 grammes (i.e. 2,622.39 grammes plus 144 grammes)  and that itself warrants a starting point of about 21 years and 5 months; whereas the total quantity of heroin hydrochloride is 457.7 grammes.   To address Mr. Chau’s contention that one ounce (or 28.35 grammes)  of the heroin was for the defendant’s self-consumption, I will take an approach favourable to the defendant by deducting 28.35 grammes from the total quantity of heroine.  That will bring about a reduced total quantity of 429.35 grammes of heroin and that itself warrants a starting point of about 15 years.  By way of a purely arithmetic calculation, 300 grammes of “ICE” will lead to the same starting point of 15 years.  Therefore, if I convert all the heroin to “ICE”, the two charges would involve a total of 3,066.39 grammes of “ICE” (i.e. 2,766.39 grammes plus 300 grammes).  That total quantity of “ICE” should lead to a starting point of about 21 years and 9 months’ imprisonment.[2] I shall use that as the starting point for the overall sentence. 

22.  The second step is to assess the role and culpability of the defendant based upon the Summary of Facts before the Court.  In short, the dangerous drugs were stored by the defendant at the storage room and the flat where he lived.

23.  The third step is to decide where within the relevant guideline band the defendant should come.  In my assessment, the defendant’s role is no more than that of a storekeeper. 

24.  The fourth step is to deal with aggravating factors, if any.  It is an aggravating factor for an accused to traffic in more than one kind of dangerous drugs “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.” (See HKSAR v Yim Hung Lui Ricky, CACC 266/2011, and HKSAR v Islam Azharul [2020] 1 HKLRD 644). I will enhance the starting point of 21 years and 9 months by 6 months, taking it to 22 years and 3 months’ imprisonment.  I shall disregard the defendant’s previous convictions as they were convictions long time ago and not related to trafficking in dangerous drugs.

25.  The fifth step is to take into account the mitigating factors, if any.  As accepted by Mr. Chau, given the seriousness of the trafficking offences, the only mitigating factor in the defendant’s case is his guilty pleas which were entered at the earliest opportunity.  Because of that, he is entitled to a full one-third discount.  That brings the overall sentence down from 22 years and 3 months to 14 years and 10 months’ imprisonment. 

26.  To achieve that overall sentence, I shall impose the following sentences for the two charges.  For the 1^st charge, I shall use a starting point of 21 years and 3 months and enhance it by 6 months due to the cocktail of dangerous drugs involved; and that enhanced starting point of 21 years and 9 months should be reduced by one-third, making a sentence of 14 years and 6 months’ imprisonment.  For the 2^nd charge, I shall use a starting point of 15 years and 6 months and enhance it by 6 months due to the cocktail of dangerous drugs involved; and that enhanced starting point of 16 years should be reduced by one-third, making a sentence of 10 years and 8 months’ imprisonment.  I shall order 4 months of the sentence for the 2^nd charge to be served consecutively to the sentence for the 1^st charge, making a total sentence of 14 years and 10 months’ imprisonment.

27.  Lastly, I consider these sentences fair, just and balanced in all the circumstances of the offence and the defendant.  Accordingly, the defendant is sentenced to a total term of imprisonment for 14 years and 10 months.

Exhibits

28.  Order in terms of the Prosecution’s application, not objected to by the Defence, was granted.